RAGHUNATH SINGH Vs. SHEO PARTAP SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-respondents against the defendant-appellants for redemption of two mortgages both dated 22 June, 1864. One of them was a mortgage by conditional sale. The property mortgaged was shares in five villages, and the money secured was Rs. 6,999. It was a condition that the usufruct should be held equivalent to interest on the money. The second deed was of the same date and secured a loan of Rs. 1,600 which was to carry interest at 12 annas per cent. per mensem. So far as the present appeal is concerned the parties admit that this second deed operated as a further charge.

(2.) The facts of the case, which it is necessary to give for the purpose of this appeal, are briefly as follows:

(3.) In 1877 foreclosure proceedings were taken by the mortgagees, but they proved abortive, because the mortgagees did not pursue the matter to an end by the necessary legal process. In 1880 there was a partition between the mortgagees of certain villages. The defendants were parties to that partition. Two out of the five villages formed part of the property which was the subject-matter of that partition suit. The mortgagees in that partition suit claimed that they were absolute owners of the shares in the two villages which the plaintiffs are now asking to redeem. It is clear that they claimed an absolute title on the ground that the foreclosure proceedings in 1877 had given them an absolute title by foreclosure. It is also clear that the defendants either did not contest this proposition or that the point was decided against them. In 1892 the plaintiffs brought a suit similar to the present one for redemption of the five villages. It was then held, after the matter had come up to this High Court, that they could not claim to redeem the two villages which were dealt with in the partition proceedings of 1880. The High Court having held this, remanded the case to the Subordinate Judge to decide the question of the redemption of the three remaining villages on its merits. The Subordinate Judge, thereupon, allowed redemption of the three villages for a sum that was arrived at by taking the proportionate value of the three villages (the proportion being reckoned according to the respective revenue payable on the three as against the five villages). He did not allow any interest on the Rs. 1,600 secured by the deed of further charge. We have looked into his judgment, and we find that no reason was given by him for ignoring the question of interest. Against this decision of the Subordinate Judge there was an appeal by the plaintiffs, that is to say the mortgagors, who wished to be given the property without payment of any sum, their contention being that the usufruct had sufficed to liquidate the principal and (possibly) the interest. On the other hand, the mortgagees filed a cross-objection complaining that the Subordinate Judge had allowed them no interest on the money advanced under the deed of further charge. The appellants withdrew their appeal, and under the law then in force the cross-objection automatically was rejected. It may be mentioned that under the law the mortgagees could have filed a cross-appeal, but did not do so. The decree of the Subordinate Judge allowed the plaintiffs to redeem the mortgage on payment of the proportionate amount of the principal money secured by the mortgages provided that they paid that amount (i.e., Rs 4,208) within six months, and the decree went on to say that if the money was not paid within that period, the suit would stand dismissed. The money was not paid,